R v Clarke

[2000] NSWCCA 160

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Jade Lillian CLARKE [2000]  NSWCCA 160

FILE NUMBER(S):
60196/99

HEARING DATE(S):           5th  May 2000

JUDGMENT DATE:            05/05/2000

PARTIES:
Regina v Jade Lillian Clarke

JUDGMENT OF:      Hulme J Carruthers AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        98/11/0702

LOWER COURT JUDICIAL OFFICER:     Christie DCJ

COUNSEL:
J S Stratton - Applicant
L M B Lamprati - Crown

SOLICITORS:
T A Murphy - Applicant
S E O'Connor - Crown

CATCHWORDS:
Criminal law - sentence appeal - alleged failure by sentencing judge to achieve parity of sentence between co-offenders - appellant pregnant at time of sentence - no sentencing error detected.

LEGISLATION CITED:
Crimes Act 1900, ss 97(1), 114(1), 116, 117

DECISION:
Application for leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60196/99

HULME J

CARRUTHERS AJ

Friday, 5 May 2000

REGINA v Jade Lillian CLARKE

JUDGMENT

1. CARRUTHERS AJ: Jade Lillian Clarke seeks leave to appeal against sentences imposed on her by his Honour Justice Christie QC at the Sydney District Court on 22 April 1999. The applicant had earlier pleaded guilty to one count under Section 97 of the Crimes Act, 1900 (the Act) robbery in company, which carries a maximum penalty of 20 years penal servitude.

2. His Honour took into account two offences on a Form 1, being one count of being armed with intent to commit an indictable offence under Section 114 of the Act. This offence carries a maximum penalty of seven years penal servitude. The second count was one of larceny which carries a maximum penalty of penal servitude for five years: see ss 116 and 117 of the Act.

1. His Honour sentenced the applicant to a minimum term of 3 years penal servitude to commence on 26 November 1998 - the date upon which the applicant was taken into custody - and to expire on 25 November 2001.  His Honour imposed an additional term of two years to commence on 26 November 2001 and to expire on 25 November 2003.

1. The applicant was born on 7 December 1979 and she had no prior criminal record. The applicant's co-offender in relation to the robbery in company offence was George Shannon Moses, who pleaded guilty before Judge Christie to armed robbery. This count was also under Section 97 of the Act. The only difference, of course, between the charges was the applicant was charged with robbery in company, whereas the co-offender Moses, was charged with armed robbery. However, in relation to Mr Moses's sentence, his Honour was not required to take into account any matters under Form 1.

1. Judge Christie imposed an identical sentence upon Mr Moses in relation to the armed robbery as that which he imposed on the applicant in respect of the robbery in company. Very briefly stated, the facts in relation to the robbery are that a little after 1am on Monday, 23 March 1998, a Mr Wusarne was working alone as a console operator at the Caltex Service Station at Neutral Bay.  At that time the co-offenders entered the store and confronted him as he was sweeping the foyer floor area.  Mr Moses was armed with a large carving knife.  He pushed Mr Wusarne in the back, causing him to fall against a display cabinet.  As  Mr Wusarne turned to face him, Mr Moses placed the blade of the knife against Mr Wusarne's throat, forcing him backwards to the cash register. Mr Moses threatened to "cut him" if Mr Wusarne did not open the cash register drawer.  At first, Mr Wusarne declined to do so.

1. The applicant then reached over the service counter and removed the cash drawer from underneath the counter.  She then removed all the notes from the cash drawer.  As the applicant was removing the money from the drawer, Mr Moses kept saying to Mr Wusarne, "I'll cut you, I'll cut you".

1. After the applicant had removed the money from the counter drawer, she started to press a number of buttons on the cash register in an attempt to cause the register drawer to open. Eventually as a consequence of the threats directed to him, Mr Wusarne opened the cash register and the applicant removed all the notes from the till.  The applicant then ran out of the store, and after the co-offender had removed the coins from the counter drawer he walked out of the store.

1. The victim described the knife as having a long silver blade which was about 35 centimetres long and curved to a point.

1. I turn then to the Form 1 matters.  Four days later viz on 27 March 1998, the applicant, unaccompanied and armed with the same knife, entered the same premises with the intent of again robbing them.  However at that time, fortunately, the proprietor was outside sweeping the apron around the petrol tanks.  Accordingly there was no need for the applicant to use the knife and she removed money from the office premises.  She was charged appropriately with the offences in the Form 1.

1. The co-offenders were apprehended in relation to the original robbery under somewhat unusual circumstances. Investigating police obtained from the service station proprietor a security video which had recorded the events of 23 March.  This video was made available to a television station which screened it on a programme dealing with unsolved crimes.  A viewer of this programme recognised either one or both of the co-offenders and, as a consequence, police armed with a search warrant, attended the premises which they jointly occupied at Willoughby on 10 June 1998.  Both offenders were arrested on that date.

1. The applicant fully admitted both offences and cooperated with the police. Originally the co-offender denied involvement, but as is clear, later admitted the robbery offence.

1. The co-offender is three years older than the applicant and had a prior criminal record, albeit not a significant one. On 8 November 1994 at North Sydney Local Court, he was dealt with on one charge of malicious damage.  The charge was proved but dismissed by the magistrate under the provisions of Section 556A of the Crimes Act.  He was at the same time convicted of failing to leave licensed premises.  In respect of that charge, he received the benefit of a recognizance under Section 556A, self in the sum of $100 to be of good behaviour for six months.

1. Subsequent to the commission of the subject offences and prior to her plea of guilty on 26 November 1998, the applicant conceived a child of whom Mr Moses is the father. The pregnancy was disclosed to Judge Christie.  He rejected any possible suggestion that this was a deliberate pregnancy to seek leniency in the sentencing process. Indeed, his Honour appropriately took the pregnancy into account in the sentencing process, acknowledging that although a custodial sentence was inevitable, the child would be born whilst the applicant was in custody.  He referred to the applicant as having "compelling subjective circumstances".  He also took into account that the applicant was, at the time of the offences, addicted to illicit substances.  He took into account the absence of any prior criminal convictions on her part, or indeed any prior criminal charges.  He regarded the applicant's prospect of rehabilitation as "excellent".  He took into account her early plea of guilty as being demonstrative of remorse and contrition.

2. The first ground of appeal was based upon the alleged disparity between the objective and subjective circumstances of the applicant and Mr Moses which were such as to leave the applicant with a legitimate sense of grievance as a consequence of the identical sentences.

1. It is apparent from what I have said that his Honour was not faced with the precise situation which confronted the sentencing judges in Lowe (1984) 154 CLR 606 and Postiglione (1995-1996) 189 CLR 295 because his Honour was not confined to sentencing co-offenders in relation to the same offence. He was, of course, sentencing co-offenders in relation to the same offence so far as the robbery on 23 March 1998 was concerned. However, he was additionally required to take into account the two matters on the Form 1, so far as the applicant was concerned

1. It has forcefully been put to us by Mr Stratton on behalf of the applicant that this Court should bear in mind that the maximum sentences in relation to both Form 1 matters are considerably lower than the maximum penalty in relation to the Section 97 matters. However, as I have indicated, this multiplicity of offences was a factor that distinguished the instant sentencing process from that in Lowe and Postiglione.  Nevertheless, having both offenders before him, his Honour appropriately, if I may respectfully say so, endeavoured to avoid any realistic disparity in sentencing them.  He sought, in a careful assessment of the relative objective and subjective factors, to attain equality in the administration of justice.  This involved a careful balancing exercise of both the objective and subjective circumstances in so far as the co-offenders were concerned.

1. Mr Stratton has drawn the Court's attention to the fact that during his remarks on sentence, his Honour said:

   "I think it is fair to say that the prisoner Moses was the leading light, if that be the correct expression,  in relation to the events which took place on 23 March.  That is, he is an imposing and threatening person who was armed with a very threatening weapon; a carving knife.  It was he who threatened Wusarne.  It was he who manhandled Wusarne and no doubt by his sheer physical presence, lent  aggression to the entire enterprise.  He was the active perpetrator of the threatened violence and the aggression. As I say, his sheer physical presence would be sufficient to lend weight to the enterprise."

2. Mr Lamprati, on behalf of the Crown, has drawn our attention to the fact that in her ERISP, the applicant was asked the following questions:

   "Q.129.  And when you left the house with George, who took possession of the knife when you left the house?

   A. It was in the backpack.

   Q. 130.  Who put it in the backpack?
   A. Me

   Q.131.  And where had the knife come from?
   A. It was found, at the time there was a council clean up, and in that George and I had gone around and collected a few things, and in that we found a utensil box with mashed potato mashers and stuff like that and the knife had come from inside the box."

3. One must bear in mind, of course, that in this joint criminal enterprise, the applicant was fully aware that Mr Moses' physical size was likely to have been an intimidating factor to any potential victim.  Further, they jointly took the knife with them, she having placed it in the bag, albeit at the critical time it was Mr Moses who was holding the knife and holding it in such a position in relation to Mr Wusarne's body that it constituted a very significant and terrifying threat to him.

1. In addition to matters that I have already mentioned, Mr Stratton specifically referred to the disparity of three years in the ages of the co-offenders; the prior clear record of the applicant; her tender age; her pregnancy; her expression of contrition in her earlier admission of the offences to the investigating police.  At the end of the day, as Mr Stratton correctly and fairly conceded, in so far as the parity exercise is concerned, the burden rests upon the applicant to satisfy this court that the sentencing discretion miscarried.

1. Dealing specifically with this point, I am unable to reach that conclusion.  The significant factor that militated against the applicant in the balancing exercise was the commission of the two Form 1 matters which must be regarded as serious matters, despite the disparity between their maximum sentences and the maximum sentence in relation to the robbery.  I can see no error in legal principle, so far as his Honour’s reasons are concerned.  There was no manifest error  and I think, if I may respectfully say so, that his Honour could not have done more than he did in an attempt to achieve parity, albeit as I have said earlier, these were not precisely Lowe or Postiglione cases.  I would reject this ground of appeal.

1. I would reject the second ground that the learned sentencing judge gave insufficient weight to the applicant's age, her pregnancy, the assertion that the offences were spur of the moment offences motivated by addiction to drugs, and his Honour's acceptance that the applicant demonstrated excellent prospect for rehabilitation.

1. I would also reject the submission that in the light of the sentencing guidelines set out in Henry 46 NSWLR 346, the sentence was manifestly excessive. This sentence preceded Henry, but nevertheless when one looks at the factors in Henry as being appropriate factors for consideration in relation to this type of offence, and the guideline judgments as a whole, I can see no aspect in which this case falls foul of the principles enunciated in Henry.

1. The point was made by the Crown that although his Honour has obviously given some thought of the fact that the applicant's child would be born when she was in custody, that the provisions for mothers having children with them whilst in custody are now much more favourable than existed at the time of the judgment of this Court in Ihm (unreported, 9 November 1993, Hunt CJ at CL, Allen and Matthews JJ).  The fact that the child will be with his mother for some time in custody is naturally a matter which attracts sympathy, however, this Court is bound to apply the relevant principles of law to the case before it.  Applying the relevant principles of law I am quite unable to conclude that there has been a miscarriage of justice in the sentencing process.

1. Although it has no influence on the decision which I have reached in this matter, I would be constrained to say that had his Honour imposed a lesser sentence upon the present applicant than Mr Moses, there would be a distinct possibility that Mr Moses would have been applicant before this Court.

1. I would not wish to leave this case without noting that one could not help but be impressed by the admirable efforts that have been made by the applicant to rehabilitate herself whilst she has thus far been in custody and the care with which she has obviously bestowed upon her child. It is now clear from the material before this Court - (irrelevant as it is to the sentencing exercise) that she has - one might be excused for saying, wisely - now severed her relationship with Mr Moses and therefore she will, upon her release from custody, be a sole parent.  One can only hope that the refusal of this application will not in any way discourage her in her rehabilitative attempts.

1. Accordingly I propose that in the circumstances, the application for leave to appeal be granted but the appeal be dismissed.

1. HULME J: I agree with the orders proposed and with his Honour’s reasons.

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LAST UPDATED: 15/05/2000